In a consumer fraud class action, the Fifth District Court of Appeal has ruled that consumers may sue over a manufacturer’s intentional suppression of important facts, even when when disclosure of the hidden information would have alerted the consumer to the product’s dangers and caused the consumer not to purchase the product. In De Bouse v. Bayer, 5-06-0077 (Oct. 9, 2008), plaintiff Teresa De Bouse filed a proposed class action against pharmaceutical companies Bayer and GlaxoSmithKline, as well as several individuals, alleging that they violated the Illinois Consumer Fraud and Deceptive Business Practices Act by intentionally concealing information casting doubt on the safety and efficacy of the statin drug Baycor.

This is actually the second appellate decision in De Bouse; the Illinois Supreme Court had returned it to the appeals court with instructions to reconsider it in light of a contemporary decision on the Consumer Fraud Act called Barbara’s Sales v. Intel Corp., 227 Ill. 2d 45, 879 N.E.2d 910 (2007). In that case, the state Supreme Court held that claims that a product was “the best” was “puffing” (routine exaggeration by advertisers) and did not amount to deception. Thus, a deceptive advertising campaign was not enough to violate the Consumer Fraud Act in this case, the Supreme Court ruled. The Fifth District, on remand, pointed out that while the drug makers were accused of a deceptive advertising campaign, their campaign was not “puffing” and involved alleged suppression of material facts so Barbara’s Sales did not apply.

The original appeal to the appeals court came with three certified questions:
1. May a consumer who bought a drug that was later recalled for safety reasons bring a Consumer Fraud Act case, even if she was not directly marketed to?
2. Is offering a drug for sale an implicit representation that it’s safe, under Illinois law, such that the manufacturer is liable under the Consumer Fraud Act?
3. Are omissions or fraudulent statements, made to a third party but intended to influence a consumer’s decisions, enough to support a Consumer Fraud Act claim?

On remand, the appeals court pointed out that the drug makers in this case are accused of indirect deception — that is, deception of a decision-maker that the plaintiff trusted, her doctor — and deception by silence or concealment. The state Supreme Court has ruled that both are forms of fraud under the Consumer Fraud Act, the appeals court said, and thus it can answer yes to questions one and three. It declined to answer question two because it mixes questions of fact and law, which is impermissible under Illinois Supreme Court Rule 308(a). Finally, the appeals court denied the defendant’s appeal of class certification as untimely, despite a clerical error that delayed notice of the certification. The remainder of the case was remanded to the trial court. Justice Welch, dissenting, argued that defendants should have been granted summary judgment because the plaintiff has admitted that she was not directly deceived.